Hurt Locker Subpoenas Arrive With New Language... And Higher Demands

from the the-$400-oscar-bounty dept

Well, it took a while, but US Copyright Group (really DC law firm Dunlap, Grubb & Weaver) have finally gotten around to getting subpoenas out to ISPs in the Hurt Lockerlawsuit. While that lawsuit was filed months ago, the subpoenas just went out, in part, because of the fight in another of USCG's lawsuits over certain aspects of the threat letters. That ended with a requirement for USCG to work with groups like the EFF to come up with more informative threat letters. The results don't look all that more reasonable, but it does note that those accused have the right to try to fight the subpoena, and removes the misleading threat of a $150,000 penalty hanging over their heads. Of course, being just slightly more honest has its cost. The pre-settlement fee demanded has been increased from $2,500 to $2,900 this time around.

Separately, in Greg Sandoval's article, he talks to Cindy Cohn from the EFF who notes that they're hearing from a lot more people on the receiving end of USCG lawsuits who have no idea what it's all about and aren't BitTorrent users at all. That happened with the RIAA lawsuits as well, but apparently at a much lower rate. This certainly calls into serious question the techniques that USCG is using to identify file sharers and to make sure they're not suing innocent people. Of course, when you look at the economics of it all, to USCG it really doesn't matter. When it makes mistakes, the actual likelihood of getting in trouble for it times the likely cost of such a mistake is so low as to make the incentive such that there's little reason to care about false positives. Yet, on the flip side, the cost of defending yourself against a bogus threat from USCG is certainly going to be more than $2,900 in almost every case. As Cohn notes:

"When it comes to copyright," Cohn said "the law is set up so that truth, whether someone actually violated the law or not, takes a back seat to financial considerations."

And, really, that's what's so nefarious about this whole process. The incentives are totally screwed up. USCG has no incentive to weed out the false positives, and the innocent folks threatened have powerful economic incentives to just pay up. It's still not "extortion," in that USCG can claim to have a legitimate legal basis for the demands, but it certainly comes damn close in practice.

Costs add up

If it weren't for all those uppity cattle creating more legal work trying to quash subpoenas and wasting the court's time claiming innocence before their execution is even arranged, the price might have stayed the same.

Incentive

"...the EFF who notes that they're hearing from a lot more people on the receiving end of USCG lawsuits who have no idea what it's all about and aren't BitTorrent users at all. That happened with the RIAA lawsuits as well, but apparently at a much lower rate."

Where is the incentive for Dunlap, Grubb & Weaver to make sure they are not suing innocent people? From here it appears as if they would rather have more false positives since many innocent people will settle anyway.

Re: Incentive

Which is of course the objection, and the reason why this kind of action is doomed to failure in the first place. Someone determined to "pirate" will find relatively safe ways to do so quite easily, while those innocent people who pay up will no longer have the disposable income to buy legally...

While that lawsuit was filed months ago, the subpoenas just went out, in part, because of the fight in another of USCG's lawsuits over certain aspects of the threat letters. That ended with a requirement for USCG to work with groups like the EFF to come up with more informative threat letters. The results don't look all that more reasonable, but it does note that those accused have the right to try to fight the subpoena, and removes the misleading threat of a $150,000 penalty hanging over their heads.

Judge Collyer's order that USCG work with the EFF in the "Far Cry" case has nothing to do with the "Hurt Locker" case, which is being presided over by Judge Urbina.

I just checked the docket, and the EFF hasn't filed a thing in the "Hurt Locker" case. Nor has the judge issued any orders about required notice to the defendants with respect to the subpoenas.

I wish CNET had posted a copy of the "correspondence" between USCG and the Qwest customer. I'd like to see it.

I, for one, would never settle if I were innocent.

Instead, after a half day drive to their office in DC, and the liberal use of an aluminum baseball bat on their craniums would make them see the error of their ways. Of course, by then, it would be too late for them to act upon that recently acquired knowledge, largely due to the sudden open skull fractures and consequent cerebral material expulsion. Just the cost of new carpeting and the re-painting would be more than they would ever collect, had they lived long enough to take the case to trial and prevail. Dick the Butcher knew what he was talking about, and it still holds true even today, for sure.

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Judge Collyer's order that USCG work with the EFF in the "Far Cry" case has nothing to do with the "Hurt Locker" case, which is being presided over by Judge Urbina.

Indeed. There was no requirement here, but it seems obvious (to all, but you, it seems) that USCG would use the new language in the Hurt Locker case to avoid having to go through the same process again.

USCG Tracking Method

In the CNET article you link to a John Doe has come forward saying that he got notice from his ISP that he got tagged. Awhile back there was an article that said that a person accused would be able to obtain the client and methods the USCG uses and to submit it for 3rd party investigation to find out if the information they get really shows infringement. Has anybody taken them up on that offer yet or has it been rescinded?

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Re: Incentive

It might not be extortion, but it does fit the legal definition of collusion which is also a crime. Why hasn't anyone cracked down on this? Knowingly sending out possible false-positives and ignoring them based on the idea that people will pay just to avoid going broke to prove their innocence fulfills all of the requirements for a collusion charge.

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Maybe you misunderstood what was being said there.

DWG contacted a Qwest customer through CNET and was informed of things, that is what I understood.

More the subpoenas apparently were just sent and there is no indication that they were executed yet as QWEST is informing their customers first and apparently no one have received a settlement offer yet directly from DWG.

Now please point to the source of your talk so we can dismiss any doubts about those facts.

I'm fairly confident that you misunderstood the text and reached the wrong conclusions.

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Maybe you misunderstood what was being said there.

DWG contacted a Qwest customer through CNET and was informed of things, that is what I understood.

More the subpoenas apparently were just sent and there is no indication that they were executed yet as QWEST is informing their customers first and apparently no one have received a settlement offer yet directly from DWG.

Now please point to the source of your talk so we can dismiss any doubts about those facts.

I'm fairly confident that you misunderstood the text and reached the wrong conclusions.

LOL

Re: LOL

I gave you the cite you asked for in the other thread. It was the Sony Music case. Did you look it up?

I'm not sure what the problem is here. Mike was parroting the report from CNET, and he made a mistake. I pointed out his mistake. He responded that his interpretation was "obvious." The fact is though that he's 100% wrong, and I told him so.

He should be admitting that he made a mistake and thanking me for pointing it out.

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You might be right. The CNET article is a little unclear. Are you saying that CNET acted as a middleman in a conversation between the Qwest subscriber and USCG? That would make more sense than what Mike is saying. Makes more sense than what I'm saying too. Thank you for pointing this out.

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In the "Far Cry" case, the judge's order reads: "FURTHER ORDERED that no later than July 15, 2010, Plaintiff, amici filers, and Time Warner Cable shall file a joint proposed notice to be provided by internet service providers who are the subject of the subpoenas in this case to their customers who are associated with the 4,577 IP addresses set forth in Exhibit A to the First Amended Complaint." So, yeah, the ISPs were provided with the letters and they sent them to their subscribers.

The whole idea of the letter was to inform the subscriber of their options in response to the their ISP being subpoenaed for their information. The settlement offers came later, after the ISP had turned over the subscriber's information to USCG. That's why I assumed that in the "Hurt Locker" case we were at the settlement offer stage. How else could the subscriber know what USCG's demands were? I hadn't considered the possibility that CNET was playing middleman in a conversation between USCG and the subscriber which is apparently what's happening. I'm not really sure. I'll have to reread the article. Too tired to do it now...

Different Costs

Why was the pre-settlement for Far Cry $1500, and for Hurt Locker it's pushing $3000? They were both independent movies, and the only difference is one of them won a bunch of awards. Movies that are critically acclaimed are valued at a higher price than Uwe Boll films?

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In a correspondence between DGW and the Qwest customer who contacted CNET, the law firm told him that file sharers have a right to fight or "quash" the subpoena and specified the kind of information Voltage Pictures requested from Qwest. DGW appears to have done away with passages about how copyright owners can sue copyright violators for up to $150,000

The Qwest customer apparently upon receiving notification from QWwest that he was being target contacted DGW directly. The article is not clear if he received a settlement letter, but is reasonable to assume he is the one that provided the Qwest notification to CNET that is shown.

What is probably the case is that Qwest is informing people about so they can move with motions to quash, dismiss or summary judgments first apparently, nowhere in there is anything about people receiving the settlements letters directly or their data being handed as of yet, not even in the dockets, it says only that the subpoenas were sent, but that is it, there is no other steps taken as of today, so either DWG is processing the data or more probably it didn't yet receive anything from Qwest.

Re: Different Costs

The 'complaint' very eloquently makes the point that each downloader is necessarily an uploader. Therefore, if they are going after all the uploaders, they are going after all downloaders, which means they know exactly how many copies were downloaded, and therefore know exactly what their damage is. Their point that the movie is almost instantaneously distributed to an unknown number of people is therefore invalid. (It would be valid in other P2P services where downloaders are not necessarily uploaders.) If they subpoena every ISP and each of those ISPs comply fully, then the extent of the damage can be very closely determined, since each defendant would simply owe the price of the movie (actually only the portion of the price that makes its way to the producers), and the producers could be made whole.

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They aren't going after all of the uploaders or all of the downloaders. They're going after just a subset of them. Nor is it necessary to know how many copies each person downloaded or uploaded. Whether it's 0.1, 1.0, or 10 copies, it counts as one infringement. With statutory damages, the plaintiff need not show actual damages at all.

apparently..

Re: apparently..

I'm not on anyone's payroll. Give me a break. When you can't argue the law or the facts, you just jump to conclusions, right? Snore.

People on here are so critical of this process, yet I don't think anyone knows what's being balanced by the courts. Take the subpoenas to the ISPs to reveal an alleged infringer's identity, for example. People are critical of that process, yet I doubt any of these critics could explain the balancing test used by the courts in determining if the subpoenas are proper. Personally, I like to understand something before I'm critical of it.

I've studied this process, and I'm explaining my understanding of it. I would hope that people would appreciate someone bringing actual analysis based on research to the table rather than unsupported opinions passed off as conclusory statements. I know I would value such things. Apparently you do not.

Anyone that disagrees with you is a shill, right? That's high-school logic. Try and think like a big boy.

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All I really wanted was to annoy you and hope you lived up to your own standards of demanding citations when someone makes a claim, partially because it was annoying having to read through said constant demands in the first place. Especially when you consistently acted like a dick when you think you're right, or have decided something or someone has lost your interest.

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I clicked on the links and read what was there, but I don't get your point. Why don't you explicitly make a point, and then I'll respond. That should work better than providing a link and expecting me to read your mind.

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Once again:

You claim others do not support their position, then you regularly fail to do so yourself, whilst acting above the rest of us at the same time. This has been the only occasion I've seen from you where you have actually substantiated what you say with something that supports your position.

When you have supported your position, you have often done so with odd interpretations of what you cite that do not actually support what you say they do.

Honestly joe, I'm not gonna bother spelling it out for you any further. If you don't get it now, you never will.

P.S.

Judge Collyer's order that USCG work with the EFF in the "Far Cry" case has nothing to do with the "Hurt Locker" case, which is being presided over by Judge Urbina.

I just checked the docket, and the EFF hasn't filed a thing in the "Hurt Locker" case. Nor has the judge issued any orders about required notice to the defendants with respect to the subpoenas.

It appears that EFF have only focused on the Far Cry case either due to insufficient resources or hoping to use it as a slap down on USCG to get them to produce better informational letters in other cases and the future regardless. In line with Mikes interpretation, it would appear that USCG could (and will) use the new letter that has been noted as not being much better than before to point at to say it is meeting requirements if it's brought up in other cases.

In other words, they're hoping they can continue bullying people into settlements whilst claiming being fully informative, even as pre-settlement cost has been raised.

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Once again, if I cite something and claim it means one thing, and you think it means something else, then explain to me exactly what you think the proper interpretation is and why. Don't just link to one of my posts and say it's wrong. Explain why it's wrong. That's how big boys make arguments.

Once again, Mike's interpretation is completely implausible. As the AC commenter in this thread has pointed out, it appears that the correspondence here is a unique situation where CNET was acting as a go-between with an alleged infringer and USCG. There is no evidence that USCG has supplied ISPs with a letter explaining their rights as the judge in the "Far Cry" case ordered them to do with TWC subscribers.

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That's how big boys make arguments.

Here you go again. It's no wonder you're so popular.

Once again, Mike's interpretation is completely implausible.

No it isn't. USCG delaying and using the new letters ordered from the Far Cry case allows them to not have to go through this issue again should EFF or others bring similar complaints in other cases. The subpoena took so long to arrive in this case precisely because of the suit in the other case, which may have meant they'd have to fight against similar claims (which they wouldn't want to waste money on - produce the new letter and send that one instead when it's done).

There is no claim that CNET has been a go between for any defendants. That seems to be a misinterpretation on your part.

This isn't only Mikes interpretation either, from the CNET article:

So why did DGW wait so long between filing the Doe suits and sending subpoenas to ISPs? Well, the law firm certainly had its hands full with all the opposition it faced. The Electronic Frontier Foundation and American Civil Liberties Union took DGW to court about whether it was proper to name thousands of individuals in a single lawsuit. Time Warner Cable objected to being compelled to look up thousands of customer records and claimed it was an undue burden. Just last week, an ISP from South Dakota filed a motion to quash one of DGW's subpoenas and argued that a U.S. District Court in Washington, D.C., doesn't have jurisdiction over it.

In the EFF case, a federal judge sided with DGW, but EFF and the ACLU did convince the judge to prod DGW to change the language it uses when notifying accused file sharers of the allegations. EFF and the ACLU argued that former notices were confusing.

In a correspondence between DGW and the Qwest customer who contacted CNET, the law firm told him that file sharers have a right to fight or "quash" the subpoena and specified the kind of information Voltage Pictures requested from Qwest. DGW appears to have done away with passages about how copyright owners can sue copyright violators for up to $150,000.

"Well, it's not what I would have written," said Cindy Cohn, EFF's legal director. "I think the letters are much better than they were, but I don't think [DGW] has done a great job of explaining what is happening."

Another change from the previous forms is the price accused file sharers can pay to settle their case. For example, last May, DGW gave Houston-resident John Harrison a chance to settle out of court for $2,500. For allegedly downloading "The Hurt Locker," DGW told the Qwest customer from Denver that settling the case early would cost $2,900, according to documents reviewed by CNET.

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In the "Far Cry" case, the letter to the subscriber was written by the EFF and USCG and then given to the ISP to give to the subscriber in question. This way USCG didn't know the identities of the subscriber.

Now how could USCG send a settlement letter to a subscriber in this case when they don't know their identity?

In the "Far Cry" case, the purpose of the letter was to tell the subscriber about their rights vis-a-vis the subpoena. It was not about USCG's offer to settle.

Here the letter in question mentions the subscriber's rights, but also mentions USCG's demand. It's not the same letter as in the "Far Cry" case.

I haven't seen the letter in question, so I'm not exactly sure what it says. That's why in my first post in this thread I said I wish CNET had posted a copy of the letter in question.

AC poster said the correspondence was a special circumstance of CNET acting as a go-between. This is a plausible explanation, but as I've indicated, I don't know either way.

The fact that the correspondence indicates what amount USCG will settle for tells me that it isn't a letter they gave to the ISPs to pass along to the subscribers, which is what Mike was claiming.

Re: Re: apparently..

If you stop acting like a 5th grade ass, then people might take you more seriously. Doubtful, but they might.

As for being critical, why is it necessary to understand the process to be critical of it? If something doesn't make sense (copyright law, for instance) then no understanding in the world will make someone less critical of it.

ass

Re: Re: Re: apparently..

OMG, this from the guy who's posting about how I'm on a payroll. Give me a break.

Why is it necessary to understand something before you can be critical of it? Are you serious?

Copyright law makes sense to the lawmakers and the courts. Maybe if you understood their position and reasoning, your criticism of that same position and reasoning would have more gravitas. Don't you think?

Re: ass

An empty post titled ass directed at the main story posted by Mike.

I'd ask a question as to why you are calling Mike an ass, but given your demonstrated ability to not understand English I'll let others think about the conduct of average_joe and come to their own conclusion as to why he's calling Mike an Ass.

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In the "Far Cry" case, the letter to the subscriber was written by the EFF and USCG and then given to the ISP to give to the subscriber in question. This way USCG didn't know the identities of the subscriber.

I know.

In the "Far Cry" case, the purpose of the letter was to tell the subscriber about their rights vis-a-vis the subpoena. It was not about USCG's offer to settle.

I thought that it contained info on how to respond along side the info on penalties and settlement fee. After the new letter was drafted, the settlement mentioned went up. That's how I've read it so far.

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It was strictly about their rights with respect to the subpoena. The text of the letter is available on the docket. I'm sure USCG would have loved to turn it into a letter about settling with them, but that wasn't the case. I can't imagine the judge ordering an ISP to distribute to their subscribers information about settling with USCG. That wouldn't make much sense.

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There's a reason why Mike's views are so fringe. You are right that his being so wrong so often does not help his credibility. I imagine he'll always wonder why other people "don't get it." He'll never realize that maybe he's the one that doesn't get it. Like I said, worst case of confirmation bias ever.

The easy answer here is if everyone were to start spreading the rumor of a complete Voltage Pictures Boycott (a complete boycott of all their crappy movies that suck anyway) and start using a good Virtual Private Network (VPN) then that would result in the dumbasses at Voltage and Dunlap, Grubb and Weaver going broke!

Eric Goldman takes it up the ass from Mike Masnick! Masnick gets his jollies while Goldman screams with a mixture of pain and delight! What that old prick Eric Goldman won't do for a new thrill! Mike Masnick is great in the sack as long as his companion is a male.

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This is all old news. As one of the targets, I received the Qwest notification in early May. Qwest released my IP along with at least several hundred others (I suppose) at the end of May. The demand for payment letter from the law firm came in late August...$1500 now...$2500 later...up to $150,000 after that and maybe even more.

I've got until Oct. 4 to pay the $2500 before I become named as a Defendant in the lawsuit and have my computer inspected.

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Re

if you've received this letter contact your local ACLU, the washington DC bar association, I even called Clark Howard's consumer help hotline to get the word out. this is extortion. i did nothing wrong and i can't even get through to DC district court on the phone to file a motion to quash.

Between a rock and a hard place!

I received a letter from my ISP saying i was on this Hurt Locker list and that my personal info was being subpoenaed. I have no knowledge of how i ended up on this list, i rent my movies from red box for a dollar.
I have contacted the lawyers that were listed on the EFF site in my state and was told by all that they were not interested in the case, that it was cost prohibitive to fight. they couldn't give me legal advice but each hinted that it was cheaper to pay the settlement fee than to fight it in Federal Court. 1 attorney stated that he was removing his name from the EFF list due to the fact that the cost to fight these cases far outweighs the cost to settle. I contacted the attorneys that are representing the EFF and they stated that they were not interested in my case because they were being very selective on who they were representing in this suit. Lastly i contacted a Wash. D.C. attorney who would at least talk to me regarding this suit. She also stated that settling, even though innocent, was the wise decision due to the cost involved in fighting.

Hurt Locker

Interesting enough I have called Bresnan due to Subpoena in the Hurt Locker case that a friend is involved in questioning why they were in such a hurry to provide information when the command date was October 18, 2013. Have had no response from them...Bresnan's response and actions will definitely affect whether I continue with them.

BS Supboena

I ordered this movie "on demand" (pay-per-view) by Charter Communications. I don't even know how to download a movie so this is complete crap! Some does in the lawsuit watched this movie legitimately but do they know the difference between who downloaded it illegally and actually paid to watch this crappy movie anyway????